Last month, I blogged here about an important rule change that the SEC approved for FINRA Dispute Resolution. After years of debate about the potential harm to investors by allowing non-attorneys to represent investors in securities arbitration and mediations, FINRA proposed barring them from its forum, if they are compensated. [See the prior post for more details of the rule change.] The SEC’s Division of Trading and Markets, acting pursuant to authority delegated by the Commission, approved that rule change proposal on Jan. 11, 2024, and the approval order was published in the Federal Register on Jan. 18.

The very
Continue Reading SEC Stays Its Order Approving FINRA Rule Change Barring Compensated Non-Attorney Representation

I am happy to announce that Sheila Heen (Harvard) will deliver the 7th Annual Bruce E. Meyerson Lecture, titled Difficult Conversations in Polarizing Times, at Arizona State on Monday March 11, 2024 at 7pm at the Sandra Day O’Connor College of Law at Arizona State University.  If you are in Phoenix for Spring Break or Spring Training, please join us (sign up here). If you can’t make it to Phoenix, we will be recording the lecture and posting it on the Lodestar Dispute Resolution Center’s web page for viewing.  Once it’s there, we will send a link for video.
Continue Reading Sheila Heen to Deliver the 7th Annual Meyerson Lecture at Arizona State

Groups of students in your classes may want to put their new collaborative skills and creativity into the service of others by entering a new student video contest, sponsored by the AAA-ICDR Foundation and the Divided Community Project’s #CampusBridge initiative. Please spread the word in your classes and share the contest announcement with your university’s student affairs, communications, and inclusive excellent leaders. The announcement is here: https://go.osu.edu/dcpcontest The hope is that the contest will encourage students to make a contribution to supporting, understanding, respecting regardless of viewpoint, and protecting students who are struggling in the midst of the Middle East
Continue Reading Amazing Opportunity for Students to Improve Their Communities Using DR Skills

Helping You Do the Best Mediation You Can is Part 2 of a two-part series presenting action research about factors affecting mediators’ individual practice systems and how they can improve their systems.
Part 1 describes a study of mediators at well-received educational programs to help them learn why they developed their particular practice systems and to encourage them to consciously improve them.  The study supports the fundamental premises of “real practice systems theory.”  Many attendees said that the programs helped them learn about their own practice systems and inspired them to continue developing them.
Part 2 suggests a
Continue Reading Helping Mediators Do the Best Mediation They Can

Psychologist Kenneth Kressel argued that mediators’ mental models of mediation are largely unconscious mixtures of formal models and “personal ‘mini-theories’ of conflict and role of mediators.”  He defined mental schemas or models as “ideas the mediator holds about the role of the mediator; the goals to be attained (and avoided), and the interventions that are permissible (and are impermissible) in striving to reach those goals.”  They are “mediator coping responses to the complex and demanding task of intervention decisionmaking and the limitations of formal models of practice and conscious human deliberation.”
I have been developing “real practice system” theory
Continue Reading Why Do Mediators Mediate the Way They Do?

Last month I sent you Leading a Divided Campus: Ideas and Illustrations and a checklist for students to extend support to their friends. I write today about a resource just published — Joint Campus-Law Enforcement Preparation for Campus Demonstrations and Hate Incidents amid Violence in the Middle East: Ideas for an Agenda, https://go.osu.edu/dcpgle. We in the OSU Moritz College of Law’s Divided Community Project are hoping that you, as your universities’ dispute resolution experts, will forward the publications to the academic, security, student affairs, communications, and government affairs folks on your campus. The newest publication is a checklist of
Continue Reading Joint Campus-Law Enforcement Preparation for Campus Demonstrations and Hate Incidents amid Violence in the Middle East: Ideas for an Agenda

It’s not exactly breaking news that a major function of American law schools is to train an upper stratum of students for jobs as associates in elite law firms and as judicial clerks.  Parsing appellate case opinions and ace-ing closed-book exams are tasks especially well designed for this purpose.
Although these activities reflect some important competencies for lawyers, law schools’ priorities reflected in their heavy emphasis is way out of whack for the jobs that most students will get after graduation.
There are some ongoing developments about licensing lawyers that could cause law schools to improve their curricula.  Although these
Continue Reading Law Students Can Use Portfolios to Plan Their Practice Systems

On the AALS listserv, Gabe Teninbaum (Suffolk) asked, “[H]ow do we teach students to define successful outcomes in a given scenario?  And how do we help them understand how to communicate with clients about defining their own success?  As a former litigator, I remember balancing clients’ varied goals (their definition of “winning” didn’t always comport with the reality of what I, as their lawyer, could deliver) with what my firm could realistically offer.”  He asked for suggestions of books, articles, or resources.
These are very important questions regarding law students’ (and lawyers’) definitions of success.  The following is my response
Continue Reading Helping Law Students Define and Pursue Success

So far, my pieces in the Real Practice Systems Project have focused on mediation.  The theory is not limited to mediation, and this post applies it to lawyering.
In the mediation context, the theory argues that mediators have unique practice systems that grow out of their personal histories, values, goals, motivations, knowledge, and skills as well as the parties and subjects in their cases.  They develop categories of cases, parties, and behavior patterns.  They design routine procedures and strategies for dealing with recurring challenges before, during, and after their mediation sessions.  Their systems are mixtures of conscious and unconscious techniques.
Continue Reading Real Lawyering Practice Systems

Love it or hate it – I sure feel both ways – technology is going to be an increasing part of our lives in the future.
And that goes double for dispute resolution practitioners.  Dispute resolution is fundamentally about communication, and technological developments are rapidly revolutionizing how we communicate.
I became more conscious of the role of technology in how practitioners actually work when I developed the Real Practice Systems Project Menu of Mediation Checklists.
This post uses those checklists to illustrate practitioners’ great reliance on technology.  Although the checklists focus on mediators, many of the technological issues also
Continue Reading Technology in Real Practice Systems

Susan Yates, the longtime Executive Director for Resolution Systems Institute (RSI), is stepping away from the organization to try her hand at different opportunities.  Susan is a great friend of this blog as well as to many in the ADR world.  We wish her nothing but the best in her new adventures.
And, this means that one of the nation’s best ADR organizations is seeking an Executive Director.  As Brian Roche, RSI’s Board President said in an email earlier today:
[T]his is an exciting time at RSI with plenty of opportunity for our next leader. We are doing important work
Continue Reading Resolution Systems Institute seeks a new Executive Director

On January 11, 2024, the Securities and Exchange Commission approved a rule change to its Codes of Arbitration Procedure and Mediation Procedure — proposed by FINRA — to bar individuals who are not attorneys from representing parties in the FINRA Dispute Resolution forum. Before the rule change, FINRA banned non-attorney representation in its arbitration and mediation proceedings “only if: (1)state law prohibits such representation; (2) the person is currently suspended or barred from the securities industry in any capacity; or (3) the person is currently suspended from the practice of law or disbarred.”

The newly-approved rule expands the ban to
Continue Reading Compensated Non-Attorney Representation Banned in FINRA Arbitrations and Mediations

Bringing this back to the front as a friendly reminder of the Schiefelbein Conference on Thursday January 11th starting at 8am MT / 10am ET.  You can find the agenda here.  Of particular interest to this blog’s readers (particularly students) is the session titled Breaking In: Careers in International Dispute Resolution scheduled at 12:30pm MT / 2:30 ET.  Also of interest – the panel titled Arbitration 2050: Facing the Future starting at 8:10am MT / 10:10am ET will include a panelist appearing via hologram from Amsterdam.
You can find the agenda here and go here for registration.
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Continue Reading Back to Front – Schiefelbein Global Dispute Resolution Conference Thursday at 8am MT / 10am ET

The Real Practice System Menu of Mediation Checklists received many rave reviews.  People said that they are “interesting,” “informative,” “so very useful,” “really helpful,” “great,” “excellent,” “wonderful,” “fantastic,” “invaluable,” “impressive,” “very thorough,” “brilliant,” and “utterly awesome” resources.  “Just wow!”
I identified numerous ways that the checklists could be used by practitioners, program administrators, and faculty, and I asked people to describe how they might use them.  I am very grateful to current and former practitioners Peter Benner, Graham Boyack, Gary Doernhoefer, Brian Farkas, Clare Fowler, Laura Kaster, Randy Kiser, Jim McGuire, Paul Monicatti, John Sturrock, Jeff Trueman, Tom Valenti,
Continue Reading Practitioners Tell Why Real Practice System Checklists Are So Useful

From BFOI Peter Reilly (Texas A&M):

Let me open this edition with gratitude for Quinnipiac-Yale’s wonderful Works-in-Progress conference that took place in October…huge thanks again to Charlie Pillsbury, Carrie Kass, and Jen Brown for an excellent, fun, and productive conference!!!

Ava Abramowitz (GW Law), Ken Webb (Kenn Webb Consulting, LLC) and Jennifer Shack (RSI)

This is the fourth update on our research into what verbal communication behaviors mediators actually use in the course of helping disputes settle. 

We’re pleased to announce that we will soon launch Phase I of the project, which is coding small claims court Zoom-mediated cases. We expect to have coded
Continue Reading ADR Scholarship Projects (Jan. 2024)

In November, OSU’s Divided Community Project responded to a request from the AAA-ICDR Foundation to provide student- and campus-focused resources for campus leaders dealing with the effects of the violence in the Middle East.  The project’s first deliverable from their #CampusBridge initiative is a guide, Leading a Divided Campus: Ideas and Illustrations, accessible at https://go.osu.edu/dcpcampus. The ideas in this guide emerged from campuses across the country.  DCP invites you to use, share or distributed this guide using this link: https://go.osu.edu/dcpcampus.

Believing that the most meaningful support that can be provided for most students will come from their friends, DCP
Continue Reading New Divided Community Project Resources for Campus Leaders